Wednesday, July 06, 2011

Public policy and arbitration awards

Public policy and arbitration awards
Correctional Officers PBA v State, 94 NY2d 321

Edward Kuhnel, a State correctional officer, was suspended from duty and served with disciplinary charges after the Department of Correctional Services learned that he flew a Nazi flag from the front porch of his home on December 10, 1996 -- the 55th anniversary of Hitler's declaration of war on the United States.

Kuhnel was charged with violating two department rules:

[1] “No employee, whether on or off duty, shall so comport himself as to reflect discredit upon the Department or its personnel;” and 

[2] “An employee shall not join or otherwise affiliate himself with any organization, body, or group of persons when such association or affiliation will place his personal interest or interest as a member of such group in conflict with or otherwise interfere with the impartial and effective performance of his duties as an employee.”

The Department also charged that Kuhnel's conduct “endangered the safety and security of all facilities in the New York State Department of Correctional Services.”

The disciplinary arbitrator found that the department failed to prove Kuhnel was guilty of the charges filed against him and ordered him reinstated to his position.

The arbitrator concluded that there was no linkage between the off-duty misconduct and Kuhnel's employment because, he said, the department failed to show that Kuhnel's conduct harmed “the department's business, adversely affected his ability to perform his job, or caused co-workers not to work with him.”

According to the arbitrator, the expectation or projection of possible harm, in contrast with evidence of actual harm, was not enough to permit restriction of the employee's symbolic free speech or regulation of his off-duty conduct. As to the charge that Kuhnel had joined or affiliated himself with an organization, that would “conflict with or otherwise interfere with the impartial and effective performance of his duties as an employee,” the arbitrator said that the department “provided no evidence of Kuhnel's affiliation with the Neo-Nazi party's objectives or activities.”

PBA filed a petition pursuant to Article 75 of the Civil Practice Law and Rules to confirm the award. The department filed a “cross-petition” in an effort to vacate the arbitration award on the grounds that “it was irrational and violated public policy.” Supreme Court granted the PBA's petition confirming the award.*

The Appellate Division, in a 3 to 5 decision affirmed the Supreme Court's action, holding that the award was rational and did not violate a strong public policy of this State. The department appealed the ruling to the Court of Appeals, which held that “our jurisprudence has carefully limited the invocation of public policy concerns as a basis for usurping the role of an arbitrator and determining a dispute on the merits.” It then affirmed the Appellate Division's determination.

The court's rational:

Collective bargaining agreements commonly provide for binding arbitration to settle contractual disputes between employees and management and the courts generally play a limited role. Courts are bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies and cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one.

Addressing the public policy argument advanced by the department, the Court said that:

The public policy exception has its roots in common law, where it is well settled that a court will not enforce a contract that violates public policy. A court, however, may not vacate an award on public policy grounds when vague or attenuated considerations of a general public interest are at stake. Courts shed their cloak of noninterference [only] where specific terms of the arbitration agreement violate a defined and discernible public policy.
 
The Court of Appeals said that “looking at the only prong of the public policy exception argued before this Court, we conclude that the award does not violate a well-defined constitutional, statutory or common law of this State.”

* Petitions to confirm an arbitration award must be filed within one year of the determination; petitions to vacate an arbitration award must be filed within three months of the date of the award.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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